>> and my two cents here is that i am not prepared to find that there is no violation, i think that there is a sunshine violation, what i am not prepared to do is to find that mr. ginsburg is the right person in light of our discretion, and so while i am not prepared to vote that he had a non-willful violation, i am prepared to resolve the issue in some way and let it go back to the task force and i am trying to look for your guidance on the correct procedural mechanism for that. >> and i guess what i am saying is that you could, i don't think that you necessarily have to vote that there has, or that there has been no willful violation, i think that you could, if it sounds like you feel like the procedure at this point, or what you would like to do is send it back to the commission, and sorry, the task force, to determine the proper

respondent for the complaint is, and i think that you could, you could make that as a motion. >> to refer the issue back to the sunshine ordinance task force you know, for further proceedings consistent with tonight. >> staff, is that... any comments from the commissioners? >> assist them with what though? are we saying that consistent with our view that the information should be disclosed? or yeah, you did the right thing, hor ray, i mean, what? what are we saying here? if we are giving them guidance. >> if it is the proper that the conclusion was that the proper respondent was not referred to the ethics commission. >> and i mean that you could say, make a referral that the ethics commission believes that there was a non-willful

violation, but improper respondent was named in the referral and so we are sending it back and it is up to them if they want to rerefer it. >> unless someone has a question. >> i am of the chapter three, and i mean, that it says that if the commission determines that there is insufficient evidence to establish that the respondent has committed a violation the commission shall publicly announce this back and announce and may not include the findings of fact and law and fact, and therefore, the commission will take no further action on the matter. but i don't think that there is anything that preincluding the commission from referring this back to the task force, to name who, and on name a respondent,

and who they believe properly should be named for this, for the decision to not to disclose this information. >> and you are telling the task force that they can't name mr. ginsburg, are you? >> i don't, i mean, the... and as i understand it. >> the problem that you are having with their naming mr. ginsburg is that he was not initially named when this alleged violation arose. and that after, second hearing, they suddenly came out, and named him and so the whole question comes did mr. ginsburg get a proper notification, so that he could go to the task force and say, hey, you should not name me and here is why you should not name me? is that? >> no, i think that the question, and i mean, the staff raised the question before that it would be a violation of mr. ginsburg procedural. >> and i understand that, and i don't think that is right, and i think that tonight you can

certainly, if you feel that mr. ginsburg non-willfully, and engaged in a non-willful violation of the sunshine ordinance, i don't think that you are precluded by the due process and if you think that mr. ginsburg did not violation the sunshine ordinance at all but that someone else in the rec department may have done so and i think that you could refer it back to them, and for that purpose. >> so you are saying that if we find that mr. ginsburg did not commit a violation, of the sunshine ordinance, >> right. >> and we are referring it back to the sunshine task force, and they can't inquire into whether or not giving mr. ginsburg notice that they are considering him as being a potential defendant and you say, no you can't do that, because the ethics commission has already said that you didn't do anything wrong. >> so we don't have any record,

that is the reason why we are saying in a sense, that you can't hold mr. ginsburg, it is because the task force did not have a record. >> and so i think that that if you feel that there is an insufficient factual record before you about whether mr. ginsburg was responsible for this, non-willful violation and you could refer back for additional factual development. >> mr. hayon. >> what is the penalty, once whomever we determine to be the respondent here, what is, you know, what is the penalty for the violation? >> willful or otherwise? >> no penalty, for a non-willful violation. >> so then, you know, in terms of that, what difference because it make? it does not make any difference at all and i do agree with the idea that whoever is the head of the department is responsible for whatever takes place at the department. and in the sense of the buck

stops here. but, while i have the floor i just want to say one thing, i think that i am the only person on this commission who really is just your average citizen and i am just an old lady from the richmond district and you know. >> my wife is going to get mad at you saying that. >> we live in the richmond. and my concern and i will voice it, and i agree that technically and legally there has been a violation. but, as a citizen of the city, i mean, who is looking out for my privacy? it seems to me that the sunshine ordinance task force only looks out for those people that have some kind of complaint about documents, and procedure within different city departments. but f my name is on that list, or any other list, where i may

have engaged in some business, with the city department, what right to privacy do i have? apparently i have none. and granted, we live in a age in which we can say there is no privacy any more, i think that most of us at some level, believe that. we are in the age of technology, and in the internet, and there are many, many entities out there that know, far more about us, than we probably know about ourselves. but even so, i would like to believe that even in some little, you know, corner of city government, there is at least one department that is not going to give us my address and my phone number. and apparently, i can't really depend on that any more. and so whatever the commission decides, i mean that i will probably vote with the majority as i have stated. yes, a violation of the law has

taken place. but i have in questions about the law and those ordinances. and i think that i just want to be on the record for that. because otherwise, as far as i am concerned, we are having a discussion about how many angels can sit on the head of a pin and the average citizen in san francisco does not care about that. and they, you know, they want clean, government, and they want the open government, but, they also want to preserve their individual privacy. and so that is my say on the topic. >> thank you, commissioner hayon. >> and any other comments from the commissioners? >> okay. is there a motion to refer the matter back to the commission to provide to the task force to provide proper notice to the respondent? >> i move that we refer this matter back to the task force

for more factual information. >> is there a second? >> i will second this. >> all in favor? >> could i clarify? >> yes. >> i just want to clarify, are you referring it... >> is this a free-for-all. >> are you intending to refer it back to the task force to further proceedings that will require them to bring it back before the commission or for them to determine how further to proceed? >> mr. pilpal. we have found that there was no, and we have not found a violation, we are referring it back without yet, finding a violation, that to, and i think that the task force then, when it gets it back and needs to go through its process and send it back to us as it normally would through the process. or not, if we choose not to. >> or not. >> that is an option.

>> yeah, i mean, yes. i think that nobody is soliciting your input at this point and i am not trying to be rude and we just need to... >> i just want to have to go through this again. >> thank you. >> all in favor? >> aye. >> aye. >> aye. >> opposed? >> no. >> no. >> motion passes. 3-2. >> the next item on the agenda is a closed session.closed session held pursuant to brown act section 54956.9(a),(e)(2) and sunshine ordinance section 67.10(d) to discuss anticipated litigation as defendant in light of mccutcheon v. federal election commission, no. 12-536 >> public comment? >> we need a motion for go into closed session? >> the public comment on the motion? >> is there a motion to move into closed session?

>> so moved. >> second. >> public comment on the closed session? >> i think that it absolutely makes sense for you to hold the close session, i just wanted to comment on what i understand as the implications of it and i hope that you will consider what legislation that you might bring before the board of supervisors to amend it in relation to the aggregate contribution limits that you might have options, and analyze what those options might be, and both in the near term and in the other implications. and long term and that you would not decide in closed session to pursue any of those tonight but that will bring those back to the commission before further discussion before doing anything, legislatively, and considering the timing and the implication on elections that are already in progress with the aggregate limit that we have now. >> thank you.

>> and any other public comment? >> i would submit that it is improper to go into closed session because this item is not properly agendaized and the sunshine ordinance specifically states that a person of reasonable intelligence should be able to figure out what it is that is being discussed and simply putting down mccutcheon verses something does not tell the average citizen as commissioner hayon pointed out that most citizens would like to read something as to have some idea of what the matter under the discussion in closed session would be so that they would know as mr. pilpal has used his rights, whether or not they need to come forward and talk to you about specific areas. and this basically just listing a case, does not give a a person of reasonable intelligence, looking at this document on the website or anywhere else any understanding whatsoever of the subject matter of this discussion and as a result it would deny them, the right to come here, and the awareness that they should come here, to talk about ail specific issue, when they had

some idea as to what that issue is. >> i also, want to make it firmly clear that i will be out in the hallway and i would like to be notified as soon as closed session is done because i have comments on the remaining issues items on the agenda. >> we will let you know. >> all in favor? >> aye. >> aye. >> aye. >> and opposed? >> the motion passes 5-0, and move into the closed session. [closed session]

>>

>> is there a motion. >> just au minute, mr. chair, i move that we disclose that in closed session, the commission discussed the legal ramifications of the decisions and has decided to have a public policy decision discussion at the next meeting to determine how to